Dobbs v. 1. U.S. Forest Serv., 2. Norman Wagoner

PAUL DOBBS, Plaintiff, v. 1. UNITED STATES FOREST SERVICE,2. NORMAN WAGONER, in his official capacity as Forest Supervisor of the Ouachita National Forest,3. TONY TOOKE, in his official capacity as Southern Regional Forester for the United States Forest Service, and4. THOMAS TIDWELL, in his official capacity as Chief of the United States Forest Service, Defendants

Case No. CIV-16-112-RAW

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

December 26, 2017

ORDER

Plaintiff filed his Amended Complaint on April 1, 2016 for injunctive and other appropriate relief under the Administrative Procedures Act, 5 U.S.C. §§ 701, et seq. (herein the "APA"). The subject of this appeal under the APA is a Decision Notice issued by the Regional Forester on September 26, 2013 (herein the "Final Decision"). Before the court are the briefs filed by the parties [Docket Nos. 45, 46 and 47]. Plaintiff argues that the Final Decision is arbitrary, capricious, and not supported by substantial evidence. He requests that the court reverse and remand this action with instructions to the Forest Service to grant his requested special use permit to construct a road to his property. Defendants argue that the court should deny Plaintiff's request, maintaining that the Forest Service complied with its required procedures for making a determination on a special use permit and that the Final Decision is supported by substantial evidence and is not arbitrary or capricious.

BACKGROUND¹

Plaintiff owns a 160-acre tract of land located approximately one-half mile south of the Talimena Scenic Drive and three miles east of Highway 259 in southern LeFlore County. Plaintiff's property is completely surrounded by the Upper Kiamichi Wilderness. Plaintiff desires to build a residence on the tract, but there is no existing road access to the property. The only current access to the property is via remnants of an old foot trail or cross country.

On February 28, 2007, Plaintiff submitted his formal application for a special use permit to construct a gravel road for motorized access to his property. AR at 191. Plaintiff's proposed road would be approximately 5,300 feet long with a 10-12 foot running surface. AR at 12. The total area of soil directly affected by the road construction would be approximately 5 acres. Id. Specifically, 5 acres of soils would no longer be suitable for vegetative production. AR at 36. The average clearing limits would be 40 feet, but due to steep terrain and slopes exceeding 20 percent, the clearing width would extend up to 100 feet. AR at 12-13.

"Construction of the road would require the use of heavy equipment, including one or more bulldozers, dump trucks, and either a 'hammer-hoe' . . . or explosives to dislodge areas of solid sandstone ledge and bedrocks along the proposed route." AR at 19. Building the road would result in an estimated 41.54 tons of sediment the first year. AR at 36. Plaintiff's proposed action would result in a 178% increase over the annual sediment delivered in an undisturbed watershed condition. AR at 37.

On November 9, 2008, while his application was pending, Plaintiff attempted to access his property by hiking through a trail. AR at 51, 478. He fell in a dangerous section of the trail, breaking his leg and tearing several ligaments in his ankle. Id. He crawled back to his vehicle and drove to a nearby hospital for treatment. Id.

On June 29, 2012, the Regional Forester issued a "Decision Notice and Finding of No Significant Impact" (herein "First Decision"). AR at 1229-35. Relying on an Environmental Assessment and a Biological Evaluation, the First Decision selected a "no action alternative" and denied Plaintiff's request to construct, maintain and use a permanent road. AR at 1230. Plaintiff was notified of the First Decision by letter dated July 19, 2012. AR at 1241. Plaintiff appealed, and in November of 2012, the Forest Service withdrew the First Decision. AR at 7.

In August 2013, the Forest Service issued an amended Environmental Assessment, adding a non-motorized alternative to be considered for access to Plaintiff's property - "Alternative C." AR at 9-49. On September 26, 2013, the Regional Forester issued the Final Decision. AR at 76-83. Again, relying on the amended Environmental Assessment and the Biological Evaluation, the Regional Forester selected the "no action alternative," denying Plaintiff's request to construct, maintain and use a permanent road. AR at 77.

On January 24, 2014, Plaintiff appealed the Final Decision to the Chief of the Forest Service. AR 108-120. On March 10, 2014, the Appeal Deciding Officer affirmed the Final Decision, exhausting Plaintiff's administrative remedies. AR at 137. On March 30, 2016, Plaintiff filed this action pursuant to the APA, challenging the Final Decision.

Access to Private Property within the Wilderness

The Upper Kiamichi Wilderness was established in 1988 and is located within the Ouachita National Forest. The Upper Kiamichi Wilderness is classified as:

Semi-Primitive Non-Motorized (SPNM): Area characterized by a predominantly natural or natural appearing environment of 2,500 or more acres. Interaction between users is low, but there is often evidence of other users. The area is managed in such a way that minimum on-site controls and restrictions may be present but are subtle. Motorized use is not permitted. There is a moderately high probability of experiencing isolation from the sights and sounds of humans, independence, closeness to nature, tranquility, and self-reliance through the application of woodsman and outdoor skills in an environment that offers challenge and risks.

AR at 29. Hikers are the largest user group. Id. Hunters also use the wilderness during the fall deer season and the spring turkey season. Id.

The Upper Kiamichi Wilderness and is managed by the Forest Service pursuant to the Wilderness Act of 1964, 16 U.S.C. §1311, et seq. (herein "Wilderness Act"). In managing the Upper Kiamichi Wilderness, the Forest Service must also comply with the Alaska National Interest Lands Conservation Act, 16 U.S.C. § 3101-3233 (herein "ANILCA").

The Wilderness Act requires that

In any case where . . . privately owned land is completely surrounded by national forest lands within areas designated by this chapter as wilderness, such . . . private owner shall be given such rights as may be necessary to assure adequate access to such . . . privately owned land . . . or the . . . privately owned land shall be exchanged for federally owned land in the same State of approximately equal value . . . .

16 U.S.C. § 1134(a) (emphasis added). Furthermore, the Forest Service must "permit ingress and egress to such surrounded areas by means which have been or are being customarily enjoyed with respect to other such areas similarly situated." 16 U.S.C. § 1134(b) (emphasis added).

ANILCA requires with regard to the reasonable use and enjoyment of land within the boundaries of the National Forest System:

Notwithstanding any other provision of law, and subject to such terms and conditions as the Secretary of Agriculture may prescribe, the Secretary shall provide such access to nonfederally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure the owner the reasonable use and enjoyment thereof: Provided, That such owner comply with rules and regulation applicable to ingress and egress to or from the National Forest System.

16 U.S.C. § 3210(a) (emphasis added).

The regulations define "access" as "the ability of landowners to have ingress and egress to their lands. It does not include rights-of-ways for power lines or other utilities." 36 C.F.R. § 251.111. "Adequate access" is defined as "a route and method of access to non-Federal land that provides for reasonable use and enjoyment of the non-Federal land consistent with similarly situated non-Federal land and that minimizes damage or disturbance to National Forest System lands and resources." Id. (emphasis added).

In issuing a special use-authorization for access to non-Federal lands, the authorized officer shall authorize only those access facilities or modes of access that are needed for the reasonable use and enjoyment of the land that minimize the impacts on the Federal resources. The authorizing officer shall determine what constitutes reasonable use and enjoyment of the lands based on contemporaneous uses made of similarly situated lands in the area and any other relevant criteria.

36 C.F.R. § 251.114(a) (emphasis added).

The Final Decision

Noting the applicable law and regulations cited above, for purposes of Plaintiff's application, the Environmental Assessment (herein "EA")² defined "similarly situated" as "private inholdings within the wilderness on the Ouachita National Forest." AR at 25. The EA defined "similar purposes" as "residential use." Id. The EA noted that: "No permits have been granted to construct a road within any wilderness inside the Ouachita National Forest." AR at 26 (emphasis added). One special use permit, the "Morrison permit," allows the land owner to maintain a low-development road, but that permit existed prior to the wilderness establishment and "is the sole permit in place affecting wildernesses of the Ouachita National Forest." Id. "A review of National Forests included in the National Wilderness Preservation System found that motorized vehicles were only allowed on roads that existed prior to the area's wilderness designation." Id. The EA determined that granting Plaintiff's application "would be contrary to the agency's customary interpretation and application of the laws and regulations pertaining to access and wilderness management." AR at 27.

As part of her review, the Regional Forester stated that she carefully considered the following regulations pursuant to the Wilderness Act and ANILCA:

• The use of means of ingress and egress which have been or are being customarily used with respect to similarly situated

...